Turner v. Fogg

• Decision Date: 24 July 1916
• Docket Number: 2243.
• Citation: 159 P. 56,39 Nev. 406
• Parties: TURNER v. FOGG, COUNTY CLERK, ET AL.
• Court: Nevada Supreme Court

159 P. 56

39 Nev. 406

TURNER v. FOGG, COUNTY CLERK, ET AL.

No. 2243.

Supreme Court of Nevada

July 24, 1916

Application for a writ of prohibition by Dewitt C. Turner against W. A Fogg, County Clerk of Washoe County, and another, to contest the constitutionality of St. 1915, c. 283. Application denied, and proceedings dismissed.

W. W Griffin, of Carson City, for petitioner.

Geo. B Thatcher, of Carson City, and E. F. Lunsford, Dist. Atty., of Reno, for respondent Fogg.

Eli Cann, Dist. Atty., of Fallon, for respondent Wilson.

H. V Morehouse, George Springmeyer, S. S. Downer, Thos. E. Kepner, James Glynn, and J. M. Frame, all of Reno, Anthony Jurich, of Ely, and N. J. Barry, of Reno, amici curiæ.

COLEMAN J.

This is an original proceeding in prohibition, designed to test the constitutionality of that certain act of the Legislature approved March 29, 1915, entitled, "An act regulating the nomination of candidates by political parties, providing for the holding of primaries and conventions, and regulating the manner of nominating candidates by petition." Stats. 1915, p. 453.

The petition in this case was filed July 17, 1916, and an alternative writ issued returnable July 22d. The importance of the case and the shortness of the time allowed for its consideration caused the court to request a number of prominent attorneys of the state to appear as friends of the court, for the purpose of giving the court the benefit of their several opinions, in order that a correct conclusion might be reached. In view of the fact that petitioner delayed his objections to the act until so short a time before the election provided for in the act sought to be annulled, and in view of the fact that the petition does not show that petitioner sought to secure any rights alleged to be guaranteed to him and infringed by the act in question, through the medium of authorized representatives of his party or by application in any way to other legally constituted authorities, this court might well be justified in refusing to consider any questions presented under the extraordinary writ prayed for, which writ rests in the sound discretion of the court.

For the purpose of avoiding possible future litigation, the court will determine certain of the contentions made by petitioner which bear upon his rights as a member of the Progressive party. Certain other questions in which petitioner's rights are only in common with those of all electors generally will not be determined in this proceeding.

We may premise what we will say in discussing the questions deemed important to be determined or referred to by referring to the well-settled proposition of law that all presumptions are in favor of the constitutionality of acts passed by the Legislature, and that all reasonable doubts are determined in favor of legislative enactments, and that courts have nothing to do with questions which go to mere policy or expediency of acts of the Legislature. It is proper here to state that the arguments presented showed a wide difference of opinion relative to the constitutionality of the act in question, both by counsel appearing for the parties to the proceeding and those appearing as friends of the court.

It was contended: First, that the whole act was void because the title contains more than one subject, in violation of section 17, of article 4 of our Constitution. We think the objections to the title of the act are fully answered by former decisions of this court, particularly the case of State v. State Bank & Trust Co., 31 Nev. 456, 103 P. 407, 105 P. 567. It is also contended that section 3 of the act in question deprives petitioner of his rights as an elector and member of the Progressive party because that section apportions delegates to the state and county conventions on the basis of the vote for representative in Congress at the last preceding election, and that the party of which he is a member, having had no candidate for representative in Congress at such election, is therefore deprived of participating in the primary election. It is conceded that under the provisions of section 2 of the act in question the Progressive party is within the classification of parties entitled to the privileges of the act in question. It is not alleged in the petition that the representatives of the party of which petitioner alleges himself to be a member made any attempt to avail themselves of the privileges of the act by complying with the provisions of section 8, or that petitioner made any request of the state and county central committees of his party to apportion delegates to the state and county conventions as prescribed in such section prior to the time fixed in such section, or at all, for such action by such state or county central committees.

Assuming, however, for the purposes of this decision, that the rights of a party elector may not be cut off by reason of the failure or neglect of the duly constituted state or county party central committees, we shall consider whether the provisions of section 3 actually have the effect of depriving a political party otherwise entitled to the privileges of the act from participating in the primary election. It is provided in section 29 of the act that:

"This act shall be liberally construed, to the end that the real intent of the electors shall prevail."

As before pointed out, section 2 of the act gives the Progressive party the positive right to proceed "to elect delegates to party conventions as hereinafter provided."

If we were to assume that section 3 is unconstitutional, and so hold, such holding would not destroy the validity of other provisions of the act, which could stand independent of said provisions. It is the contention of counsel for respondents that the provision in question is directory merely, and not binding upon a party otherwise entitled to the benefits of the act, but which cannot comply with this basis of apportionment. Authorities have been cited which seem to sustain this view. Morrow v. Wipf, 22 S.D. 146, 115 N.W. 1126.

As the duly authorized representatives of petitioner's party, so far as appears from the petition, did not, within the time prescribed by the provisions of section 8, seek to preserve the rights of their party by any other reasonable method of apportionment, we cannot see where petitioner is entitled, particularly in this character of proceeding, to question the validity of this particular provision of the act.

It is contended by petitioner that section 11 of the act renders the entire act void because, under contingencies which may arise under the...